`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 1 of 7 PagelD# 26423
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`EXHIBIT 3(cid:3)
`EXHIBIT 3
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 2 of 7 PageID# 26424
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`RESTRICTED – ATTORNEYS’ EYES ONLY
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
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`RAI STRATEGIC HOLDINGS, INC. and
`R.J. REYNOLDS VAPOR COMPANY,
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`Plaintiffs and Counterclaim
`Defendants,
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`
`
`v.
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`ALTRIA CLIENT SERVICES LLC; PHILIP
`MORRIS USA INC.; and PHILIP MORRIS
`PRODUCTS S.A.,
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`Defendants and Counterclaim
`Plaintiffs.
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`
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`Civil Action No. 1:20-cv-393
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`SECOND AMENDED AND SUPPLEMENTAL OPENING EXPERT REPORT OF JOHN
`ABRAHAM RELATING TO US PATENT NOS. 10,104,911 AND 10,555,556
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 3 of 7 PageID# 26425
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`-
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`274. The polypropylene tube is a "housing having an opening" based on the plain and
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`ordina1y meaning of the te1m because it (i) houses other components and (ii) includes an aperture
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`or hole, which is the plain and ordinaiy meaning of "opening." This is consistent with the '556
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`Patent, which shows an "opening 44" in Figure 2 (the "opening" shown is further "defined by the
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`172
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 4 of 7 PageID# 26426
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`substrate”). ’556 Patent at 12:4-9. The ’556 Patent also describes an “open end” with an “aperture
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`44” in Figure 3. Id. at 12:46-47.
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`Figure 2
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`Figure 3
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`34
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`31
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`24
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`34
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`’556 Patent at Figs. 2 and 3.
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`275. To the extent Reynolds argues that the polypropylene tube does not include an
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`“opening,” I disagree for several reasons.
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`276. First, Reynolds’ corporate representative testified that the tub includes an opening.
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`See also Hunt Dep. Tr. at 149:10-150:3 (the “polypropylene tube” has an end that is “open” when
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`unassembled).
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`277. Second, to the extent Reynolds argues that the polypropylene tube does not include
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`an opening
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` this would be
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`inconsistent with the disclosures of the ’556 Patent. For example, as shown in Figure 3 of the ’556
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`Patent, the patent teaches that “[t]he housing 24 has an open end” (or “aperture”) even where it
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`may be “covered by a removable cover 26.” ’556 Patent at 12:33-47.
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`173
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 5 of 7 PageID# 26427
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`Figure 3
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`48
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`42
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`26
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`36
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`4
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`46
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`40
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`’556 Patent at Fig. 3.
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`34
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`278. Third, the VUSE Vibe air flow path shows that air flows through the “opening” I
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`identified
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`-- ■ -----1 ■ -
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` In any event, as the
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`’556 Patent contemplates, an “opening” may be covered by something else, but is still an
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`“opening.”
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`174
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 6 of 7 PageID# 26428
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`279.
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`Fourth, as discussed, I understand that Reynolds attempted to argue at the claim
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`construction phase that the te1m "the housing having an opening" means "the housing having a
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`passage or hole through which liquid aerosol-fo1ming substrate can flow." Dkt. No. 226. I
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`understand that the Comt rejected this constrnction and instead adopted the plain and ordinaiy
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`meaning for opening, which is a hole or apertme. Dkt. No. 360. This refutes any argument by
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`Reynolds that the opening of the polypropylene tube, which is a hole or aperture, does not infringe
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`this li1nitation.
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`c.
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`"wherein the liquid storage portion comprises at least two
`parts in fluid communication with each other"
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`280. The VUSE Vibe Caitridges include a liquid storage p01tion comprises at least two
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`parts in fluid communication with each other. This is shown in the photograph I took, as discussed
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`with respect to the prior limitation.
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`175
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`Case 1:20-cv-00393-LO-TCB Document 952-3 Filed 02/11/22 Page 7 of 7 PageID# 26429
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`I declare under penalty of perjury that to the best of my knowledge, information, and belief, the
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`foregoing statements are true and correct.
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`
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`DATED: May 10, 2021
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`
`
`Dr. John Abraham
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`220
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